Quick Justice – Sometimes

As anyone who has had some involvement with lawyers and courts will tell you, the vast majority of cases take a long time to resolve.

Whether they have to go to trial or most of the way towards a trial, unless the disputing parties have an early epiphany and negotiate a settlement, a case once commenced can develop a life of its own and take 2 or more years to resolve.

A lot of money can be spent on lawyers in 2 years.

One thing a Plaintiff, or a Defendant, should ask their lawyer to consider very early on in the proceedings is whether the case is one in which an application for summary judgment (for a Plaintiff) or summary dismissal (for a Defendant) is appropriate.

Summary judgment (or dismissal) is a process which is available in circumstances where the party bringing the application considers that the defence (or the claim, if you are the Defendant) has absolutely no chance of getting up and that to allow the case to go on is a waste of everyone’s, including the court’s, resources (time and money).

An application of this kind is commenced by what is known as a chamber summons. It must be supported by an affidavit (a sworn document) setting out the basis for the belief and attaching all relevant documents to back up any statements made in the affidavit. The affidavit should include a statement to the effect that there is no claim (or defence) and that, in the case of summary judgment, the Defendant has lodged a defence just to delay the inevitable; e.g. in a case to recover a debt where it is obvious that money is owed and the Defendant just can’t or won’t, for whatever reason, pay it back.

The courts have necessarily set the bar for such applications quite high. The Defendant need not show that he/she/it has a watertight Defence, just that they have an arguable defence, and the court on a summary judgment application, will rarely, if ever, settle a dispute regarding the facts by preferring what is said in one affidavit over another.

However, that being said, in a case where an application of this kind is considered appropriate, it is a step that is well worthwhile pursuing. If successful, it brings proceedings to an end quickly and at far less cost than if a trial is necessary or the matter drags on for months (if not longer) until the parties reach a compromise.

Even if it isn’t successful, at the very least it will require your opponent to file an affidavit or affidavits setting out sufficient evidence to satisfy the court not to grant summary justice. Although it is not appropriate just to make an application for this purpose (i.e. in circumstances where you don’t reasonably consider it has a chance of success) this gives you the opportunity to see at least some of the evidence that might be put against you as the claim goes further.